FTC Settlement and Facebook – Changing Our Perception(s) of ‘Privacy’

The complaint filed against Facebook, Inc., by the U.S. government alleged that the social network’s 2009 Privacy Policy had “caused harm to users, including, but not limited to, threats to their health and safety, and unauthorized revelation of their affiliations [e.g. political views, sexual orientation, or business relationships].” The prickly wording by the Federal Trade Commission (FTC) forced a settlement, whereby Facebook would agree to submit to an independent privacy audit every two years for 20 years, or face possible fines of $16,000 per day per violation.

What’s more intriguing than the actual settlement details is the apparent paradigm shift in how the U.S. government will perceive individual privacy going forward. In essence, Facebook has created a cultural shift over how we view privacy. The perception of privacy in America has long been characterized, by some, as having roots formed under the 1st Amendment of the U.S. Constitution. However, a plain reading of the Constitution shows that the word “privacy” does not exist, and therefore an interpretation of what constitutes “privacy” is required (vis a vie the 4th Amendment). How society treats a concept, like privacy, is just one factor that goes into interpreting the “spirit” of our laws.

Under the FTC Settlement, Facebook will presume that its users do not want to partake in new feature rollouts. This “opt-in” presumption is a major alignment towards privacy viewpoints shared in other parts of the world – especially in Canada and the European Union. Will the move by the FTC force other industries, like the financial services industry, to re-examine opt-in/opt-out procedures? By example, when I applied for law school student loans, the bank asked me if I wanted to opt-out of their third-party practice of selling my information. The presumption at that time, and right now, is that I want my information sold to a third-party so that I can enjoy affiliate and ancillary benefits.

The phenomena of Facebook is that it has changed long-held perceptions over how our legal system views privacy. In as little as five years, we may look back and scoff at the idea that items placed in a curbed garbage bag are still private, and be more appalled at government intrusion into our electronic records.